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PART ONE INTRODUCTION Equal Pay Act of 1963 Title VII of the 1964 Civil Rights Act Executive Orders Age Discrimination in Employment Act of 1967 Vocational Rehabilitation Act of 1973

PART ONE INTRODUCTION

Equal Pay Act of 1963

Title VII of the 1964 Civil Rights Act

Executive Orders

Age Discrimination in Employment Act of 1967

Vocational Rehabilitation Act of 1973

Pregnancy Discrimination Act of 1978

Federal Agency Guidelines

Selected Court Decisions Regarding EEO

The Civil Rights Act of 1991

Sexual Harassment

Proving Sexual Harassment

Sexual Harassment Court Decisions

Sexual Harassment Causes

What the Manager/Employer Should Do

What the Employee Can Do

The Americans with Disabilities Act

ADA Implications for Managers and Employers

Genetic Information Non-Discrimination Act of 2008

(EDNA)

The Federal Employment Non-Discrimination Act

State and Local EEO Laws

Defenses Against Discrimination Allegations

What Is Adverse Impact?

Bona Fide Occupational Qualification

Business Necessity

Retaliation

Illustrative Discriminatory Employment Practices

A Note on What You Can and Cannot Do

Recruitment

Selection Standards

Promotion, Transfer, and Layoff Procedures

The EEOC Enforcement Process

Boosting Workforce Diversity

Steps in an Affirmative Action Program

In Brief: This chapter gives a history of

equal opportunity legislation, outlines

discriminatory practices, describes the EEOC enforcement process, and suggests proactive programs

Interesting Issues: Affirmative Action

programs have come under fire in recent years, even by some members of protected groups A very critical issue is whether Affirmative Action represents “a leg up” assistance for those who have been historically discriminated against, or

if it becomes a “crutch” that hinders their motivation and ability to compete and perform Although this is a delicate and potentially volatile issue, helping students see and understand both sides of the argument will help them understand the depth of these issues

B Equal Pay Act of 1963 (amended in 1972) made it unlawful to

discriminate in pay on the basis of sex when jobs involve equal

work, equivalent skills, effort, and responsibility, and are

performed under similar working conditions

C Title VII of the 1964 Civil Rights Act

1 What the Law Says

a The act says it is unlawful to fail or refuse to hire or to discharge an individual or otherwise to discriminate against any individual with respect to his/her compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin

b The act says it is unlawful to limit, segregate, or

employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his/her status as an employee, because of such individual’s race, color, religion, sex, or national origin

2 The EEOC (Equal Employment Opportunity Commission)

was established by Title VII It consists of five members (serving five-year terms), appointed by the president with the advice and consent of the Senate The EEOC investigates job discrimination complaints and may file charges in court

D Executive Orders by various presidents have expanded the

effect of equal employment laws in federal agencies President

Johnson’s administration (1963–1969) issued Executive Orders

11246 and 11375, requiring contractors to take affirmative

action (steps taken for the purpose of eliminating the present

effects of past discrimination) to ensure equal employment opportunity

E Age Discrimination in Employment Act (ADEA) of 1967 made

it unlawful to discriminate against employees or applicants for employment who are between 40 and 65 years of age

F Vocational Rehabilitation Act of 1973 required employers with federal contracts over $2500 to take affirmative action for the employment of handicapped persons

G Pregnancy Discrimination Act (PDA) of 1978, an amendment

to Title VII of the Civil Rights Act, broadened the definition of sex discrimination to encompass pregnancy, childbirth, or related medical conditions It prohibits using such conditions to discriminate in hiring, promotion, suspension, discharge or any other term or condition of employment

H Federal Agency Guidelines are uniform guidelines issued by federal agencies charged with ensuring compliance with equal

recommended” employer procedures regarding matters like employee selection, record keeping, pre-employment inquiries, and affirmative action programs

I Selected Court Decisions Regarding Equal Employment Opportunity

1 Griggs v Duke Power Company Griggs was a case heard

by the Supreme Court in which the plaintiff argued that his employer’s requirement that coal handlers be high school graduates was unfairly discriminatory In finding for the plaintiff, the Court ruled that discrimination need not be overt to be illegal, that employment practices must be related to job performance, and that the burden of proof is

on the employer to show that hiring standards are job related if it has an unequal impact on members of a protected class

2 Albemarle Paper Company v Moody Moody was a

Supreme Court case in which it was ruled that the validity

of job tests must be documented and that employee performance standards must be unambiguous

J The Civil Rights Act (CRA) of 1991 places burden of proof

back on employers and permits compensatory and punitive

damages

1 Burden of Proof was shifted back to where it was prior to

the 1980s with the passage of CRA 1991; thus, the burden

is once again on employers to show that the practice (such

as a test) is required as a business necessity For example, if

a rejected applicant demonstrates that an employment practice has a disparate (or “adverse”) impact on a particular group, the employer has the burden of proving that the challenged practice is job related for the position in question

2 Money Damages — Section 102 of CRA 1991 provides

discrimination (disparate treatment) can ask for 1) compensatory damages and 2) punitive damages, if it can

be shown the employer engaged in discrimination “…with malice or reckless indifference to the federally protected rights of an aggrieved individual.”

3 Mixed Motives — CRA 1991 states: “An unlawful

employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” Employers cannot avoid liability by proving it

would have taken the same action—such as terminating someone—even without the discriminatory motive

Plaintiffs in such so-called “mixed motive” cases recently gained an advantage from a U.S Supreme Court decision

in Desert Palace Inc v Costa, where the court decided that

the plaintiff did not have to provide evidence of explicitly discriminatory conduct, but could provide circumstantial

evidence

K Sexual Harassment involves repeated actions against and

individual on the basis of sex that has the purpose or effect of

substantially interfering with a person’s work performance or

creating an intimidating, hostile, or offensive work

environment

1 Submission is either explicitly or implicitly a term or

condition of an individual’s employment

2 Submission to or rejection of such conduct is the basis for employment decisions affecting such individual

3 Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment

L Proving Sexual Harassment There are three main ways to prove sexual harassment

1 Quid Pro Quo — The most direct way of proving sexual harassment is to prove that rejecting a supervisor’s advances adversely affected what the EEOC calls a

“tangible employment action.”

2 Hostile Environment Created by Supervisors — Supervisor advancements can interfere with performance and create an offensive work environment There is a difference between simple flirting and sexual harassment

3 Hostile Environment Created by Coworkers — An employee’s coworkers or customers can cause the employer to be held responsible for sexual harassment

M Sexual Harassment Court Decisions — The Supreme Court

used the Meritor Savings Bank, FSB v Vinson case to endorse

the EEOC’s guidelines on sexual harassment

1 Burlington Industries v Ellerth — quid pro quo harassment

2 Faragher v City of Boca Raton — hostile work

environment

N Sexual Harassment Causes — The most important factor is a permissive social climate, one where employees conclude there’s a risk to victims for complaining, that complaints won’t

be taken seriously, or that there’s a lack of sanctions against offenders

 Gender harassment is a form of hostile environment harassment that appears to be motivated by hostility toward individuals who violate gender ideals

O What the Manager/Employer Should Do — Employers should

do two things: They should take steps to ensure harassment

does not take place Second, once being apprised of such a

situation, they should take immediate corrective action even if

the complainant is a non-employee

P What the Employee Can Do — Employees should immediately

make it clear the behavior experienced was unwelcome

Following the employer’s policies is crucial but filing verbal

and written reports with the harasser’s manager and HR is

likely to help If not, turn to the local office of the EEOC

Q The Americans with Disabilities Act requires employers to

make reasonable accommodations for disabled employees, and

it prohibits discrimination against disabled persons

1 Qualified Individual — The act prohibits discrimination

against those who, with or without a reasonable accommodation, can carry out the essential functions of the job

2 Reasonable Accommodation — If the individual cannot

perform the job as currently structured, the employer is required to make a “reasonable accommodation,” unless doing so would present an “undue hardship.”

3 The ADA in Practice — ADA complaints are flooding the

EEOC and the courts However, 96% of federal court decisions in a recent year were for the employer

4 The “New” ADA — On January 1, 2009, the ADA

Amendments Act of 2008 became effective This will make

it much easier for employees to show that their disability is influencing one of their “major life activities.”

5 ADA Implications for Managers and Employers — The

ADA imposes certain legal obligations on employers:

a Although employers may not make pre-employment inquiries about a person’s disability, they may ask

questions about the person’s ability to perform specific

essential job functions

b If the employer rescinds an offer after an offer is extended, the applicant must be able to recognize a legitimate reason for the rejection

c Medical exams for all applicants are allowed as long as

a concrete job offer is forthcoming prior to the exam

d An employer must not deny a job to a disabled individual if the person is qualified and able to perform the essential functions of the job; if the person is otherwise qualified but unable to perform an essential function, the employer must make a reasonable accommodation unless doing so would result in undue hardship HIV-positive individuals are generally ADA disabled, whether or not they are showing symptoms

e Documentation of any disorder may be required in order

to assess its impact on job performance

f Employers do not need to allow misconduct or erratic performance, even if that behavior is linked to the disability

g Don’t treat employees as if they are disabled

6 Improving Productivity Through HRIS: Accommodating Disabled Employees — Technology makes it easier for employers to accommodate disabled employees Blind employees can work successfully using a screen-reading program named JAWS Real-time translation captioning enables employees with hearing or speech impairments to participate in lectures and meetings

R Genetic Information Non-Discrimination Act of 2008 — GINA prohibits discrimination by health insurers and employers based on people’s genetic information

S The Federal Employment Non-Discrimination Act — ENDA would prohibit workplace discrimination based on sexual orientation and gender identity if Congress passes it

T State and Local Equal Employment Opportunity Laws — typically, further restrict employers’ treatment of job applicants and employees, especially those not covered by federal legislation State and local equal employment opportunities agencies play a role in the equal employment compliance process

A What Is Adverse Impact? — Adverse impact refers to the total employment process that results in a significantly higher percentage of a protected group in the candidate population being rejected for employment, placement, or promotion

1 Title VII prohibits both disparate treatment and disparate

2 Adverse impact “…refers to the total employment process

that results in a significantly higher percentage of a protected group in the candidate population being rejected for employment, placement, or promotion.” The complainant would use one of two rules:

a The “4/5Rule” is applied if 80% (4/5) of minority applicants passed a given test while only 20% of the minority applicants passed

non-b The McDonnell-Douglas Test requires four rules be applied:

i the person belongs to a protected class;

ii he or she applied and was qualified for a job;

iii despite this qualification, he or she was rejected;

iv after his or her rejection, the position remained open and the employer continued seeking applications from persons with the complainant’s qualifications

3 Workforce Analysis — Employers use workforce analysis

to obtain and to analyze the data regarding the firm's use of protected versus non-protested employees in various job classifications

4 Bringing a Case of Discrimination: Summary — There are

two defenses that the employer can use: BFOQ and business necessity

B Bona Fide Occupational Qualification (BFOQ) — is a defense

used to justify an employment practice that may have an

adverse impact on members of a protected class It is a

requirement that an employee be of a certain religion, sex, or

national origin where that is reasonably necessary to the

organization’s normal operation This is even more narrowly

interpreted by courts

C Business Necessity — is a defense created by the courts, which

requires an employer to show an overriding business purpose

for the discriminatory practice and that the practice is therefore

acceptable

D Retaliation — To paraphrase the EEOC, “all of the laws we enforce make it illegal to fire, demote, harass, or otherwise

“retaliate” against people because they filed a charge, complained to their employer or other covered entity

A note on what you can and cannot do — pre-employment

questions are not inherently legal or illegal Rather, the impact of the questions is what courts assess in making determinations about discriminatory practice “Problem questions” are those that screen out members of a protected group The EEOC approves the use of

“testers” posing as applicants to test a firm’s procedures Care should be taken in devising employment practices and in training recruiters

A Recruitment — If the workforce is not truly diverse, relying on word of mouth to spread information about job openings can reduce the likelihood of all protected groups having equal access to job openings However, word-of-mouth is an excellent source of quality candidates, as long as the workforce

is diverse and representative of the area in which the firm recruits It is unlawful to give false or misleading job information Help-wanted ads should be screened for potential age and gender bias

B Selection Standards — Educational requirements and tests that are not job-related, or which result in adverse impact can be found to be illegal Showing preference to relatives may also contribute to a lack of racial diversity; height, weight, and physical characteristics should be job related Felony conviction information can be sought, but arrest records negate the presumption of “innocent until proven guilty” and may result in adverse impact against groups with a high incidence of arrests Tattoos and body piercings are an issue at work For example, if an employee must respond to customers via telephone, having a piece of jewelry pierced through the tongue will likely be noisy and disturbing to the customer on the phone Application forms should not contain questions that might allow potentially discriminatory information to be gathered

C Promotion, Transfer, and Layoff Practices — Fair employment laws protect not just job applicants but also current employees

Employees have filed suits against employers’ dress, hair,

uniform, and appearance codes under Title VII, claiming sex

discrimination and sometimes, racial discrimination In some

cases, the courts have agreed

A Processing a Charge — All managers should have a working

knowledge of the steps in the EEOC claim process

1 File Claim — Under CRA 1991, the charge generally must

be timely filed in writing and under oath by (or on behalf of) the person claiming to be aggrieved, or by a member of the EEOC who has reasonable cause to believe that a violation occurred The EEOC can either accept the charge

or refer it to the state or local agency Serve notice—after the charge has been filed, the EEOC has 10 days to serve notice on the employer

2 Voluntary Mediation — A neutral third party may aid the

parties in reaching voluntary resolution The EEOC will ask the employer to participate if the claimant agrees to mediation Employer options include mediating the charge, making a settlement offer, or preparing a position statement for the EEOC

HR in Practice: Management Guidelines for Dealing with

EEOC Charges During the EEOC Investigation — There are

several things to keep in mind: be methodical, remember EEOC

investigators are not judges, give the EEOC a position statement,

ensure there is information in the EEOC’s file demonstrating lack

of merit of the charge, limit the information supplied as narrowly

as possible, seek as much information as possible, and prepare for

the EEOC’s fact-finding conferences—preventing is better than

litigating

Today’s Diverse Workforce — Companies today are striving for

racial, ethnic, and sexual workforce balance, “not because of legal

imperatives, but as a matter of enlightened economic self-interest.”

Diversity means being diverse or varied, and at work means having

a workforce comprised of two or more groups of employees with

various racial, ethnic, gender, cultural, national origin, handicap,

age, or religious backgrounds

A Diversity’s Potential Pros and Cons — Diversity has both benefits and threats for employers

1 Some Downsides — Demographic differences can produce behavioral barriers

a Stereotyping — the process in which someone ascribes specific behavioral traits to individuals based on apparent membership in a group

b Discrimination — taking specific actions toward or against the person based on the person’s group

c Tokenism — happens when a company appoints a small group of women or minorities to high-profile positions

d Ethnocentrism — is the tendency to view members of other social groups less favorably than one’s own

e Gender-role stereotypes — the tendency to associate women with certain jobs

2 Some Diversity Benefits — The key is properly managing these threats Diversity climate is the extent to which employees believe the firm promotes equal opportunity and inclusion

3 Strategy and HR — Workforce diversity makes strategic sense IBM is used as an example in the HR as a profit center discussion

B Managing Diversity — means taking steps to maximize diversity’s potential advantages while minimizing the potential barriers, such as prejudices and bias that can undermine the functioning of a diverse workforce

1 Top-Down Programs — One diversity expert concluded that five sets of voluntary organizational activities are at the heart of any diversity management program: 1) provide strong leadership, 2) assess the situation, 3) provide diversity training, 4) change culture and management system, 5) evaluate the diversity management program

2 “AGEM” — is a diversity training process involving

Approach, Goals, Executive commitment, and Mandatory Attendance

C Encouraging Inclusiveness — may be used on the personal, interpersonal, and organizational levels